Submitted: September 20, 2016
from United States District Court for the Eastern District of
Arkansas - Little Rock
LOKEN, BEAM, and BENTON, Circuit Judges.
BENTON, Circuit Judge.
Arkansas Department of Human Services (DHS) terminated
Lakeysia Y. Wilson, an African-American female, as a program
supervisor. She sued DHS alleging disparate treatment on
account of race, and retaliation in violation of Title VII,
42 U.S.C. §§ 2000e-2 and 2000e-3(a). The district
court dismissed both claims. Having jurisdiction under 28
U.S.C. § 1291, this court affirms in part and reverses
2011, Wilson was hired as a field investigator at DHS. In
2013, DHS terminated another African-American field
investigator, Sharon Meeks, for violating DHS policy. Meeks
filed a discrimination charge with the Equal Employment
Opportunity Commission and an internal grievance with DHS. A
State Appeal Panel ordered her reinstated. After DHS said
there were no available positions, Meeks applied for an open
program-supervisor position in the Division of Aging and
Robins, Wilson's Caucasian supervisor, led the
investigation resulting in Meeks's termination. Robins
urged Wilson to apply for the same open program-supervisor
position that Meeks applied for. Wilson says that Robins
urged her to apply because Robins "was determined to
thwart the efforts of Mrs. Meeks." Wilson and Meeks were
the only applicants interviewed. In March 2014, Wilson got
the job-a promotion to program supervisor. DHS then re-hired
Meeks in Wilson's old position, but fired her three
before and shortly after her promotion, Wilson received
positive performance evaluations. She alleges that after
Meeks was fired, Robins began to unfairly criticize her work
performance. On June 30, Robins gave Wilson a choice between
demotion or termination, but then stripped her of supervisory
duties on July 2.
filed a charge of discrimination with the EEOC on September
8, 2014, alleging harassment based on race and disability.
Three weeks later, Wilson was placed on a Performance
Improvement Plan (PIP). The next week, she received a written
warning for work that a Caucasian female employee did not
accomplish. Wilson was terminated on October 22, six weeks
after filing the EEOC charge. The next day, Wilson filed a
second EEOC charge alleging that between September 9 and
October 22, she "was disciplined and discharged in
retaliation for filing a previous charge and because of my
sued DHS alleging disparate treatment, retaliation, and
harassment. The district court dismissed the harassment claim
as time-barred, and the disparate treatment and retaliation
claims for failure to state a claim. Wilson appeals the
dismissal of her disparate treatment and retaliation claims.
argues that the district court erred in dismissing her claim
for disparate treatment "on account of her race, when
she was disciplined for something that a Caucasian female
employee did not accomplish." A plaintiff can often
avoid summary judgment with evidence showing instances of
dissimilar discipline. See, e.g., Harvey v.
Anheuser-Busch, Inc., 38 F.3d 968, 972 (8th Cir. 1994).
district court concluded that Wilson did not state a
plausible claim for disparate treatment because "a
written warning does not constitute an adverse employment
action." See Singletary v. Mo. Dep't of
Corr., 423 F.3d 886 (8th Cir. 2005) (holding that
placement on administrative leave pending a disciplinary
investigation was not adverse employment action where the
plaintiff maintained the same pay, grade, and benefits).
See also Boss v. Castro, 816 F.3d 910, 918 (7th Cir.
2016) ("[P]lacement on a PIP . . . is simply not
materially adverse in the discrimination context."). But
Wilson's disparate treatment claim suffers from a more
serious defect: not alleging disparate treatment.
Wilson's claim of discipline "for something that a
Caucasian female ...